Patent enforcement

Infringement

A person will be liable for patent infringement and actions may be brought against him/her if for business purposes and without authorization of a patentee, such person committed any of the following acts:

• making, using, offering for sale or selling the patented product;

• using the patented process;

• using, offering for sale or selling the product directly obtained by the patented process;

• importing the patented product; or

• importing the product directly obtained by the patented process.

Preliminary injunction

Where any patentee or interested party has evidence to prove that another person is infringing or will soon infringe his/her patent right and that, if such infringing act is not checked or prevented from occurring in time, it is likely to cause irreparable harm to such patentee, the latter may, before any legal proceedings are instituted, request the people's court to adopt measures for ordering the suspension of relevant acts and the preservation of property.

Compensation for damages

The amount of compensation for the damages caused by the infringement of the patent right shall be assessed on the basis of the losses suffered by the patentee or the profits which the infringer has earned through the infringement. If it is difficult to determine the losses or the profits, the amount may be assessed by reference to the appropriate multiple (from one to three times) of the amount of the exploitation fee of that patent under contractual licence.

Criminal sanction

Passing off the patent of another person will be a criminal offence if the circumstances are serious. The infringer will be subject to a penalty or detainment or up to three year's imprisonment.

Judicial or administrative actions

A patentee or an interested party may bring an action against an infringer in a court having jurisdiction or seek to resolve the dispute through administrative action by making a request to the relevant administrative authority for patent affairs. The administrative authority is empowered to order the infringer to stop infringing acts and to mediate disputes on the claimed damages to the infringee. In cases of passing off, the administrative authority may order the confiscation of the illegal gains by the infringer, and impose on the infringer a penalty of up to three times the illegal gains, or 5,000 renminbi if there were no illegal gains.

A patent infringement should be brought before the court under whose jurisdiction the infringer is located or the infringement takes place, or the place where the infringing products are made or sold.

For administrative resolution the request should be filed with the administrative authority for patent affairs in the place where the infringement occurs.

Statutory limitation

An infringement suit must be initiated within two years from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringement act.

Burden of proof

The plaintiff has to submit evidence to prove his claim against infringement and to support his claim for damages. Any denial of the charge of infringement or counter claim must be also supported by evidence.

The burden of proof will be borne by the defendant if the litigation concerns a process patent for the manufacture of a new product filed after 1 January 1993. In the case of such a charge the defendant denying the charge should present evidence proving that his product is not manufactured using the patented process.

For a process patent filed before 1 January 1993, the burden of proof will be borne by the defendant regardless of whether the process is for the manufacture of a new product. The court or administrative authority may ask for a search report to be made by the patent office.

Appeal

The decision of the court of first instance can be appealed against to the higher level court whose decision is final and enforceable. The statutory time limit for an appeal is 15 days after the date on which the written judgment is served for domestic parties, or 30 days for foreign parties having no residence in China.

The decision of the administrative authority may be appealed against to the intermediate court having jurisdiction if a party is not satisfied with the decision. The judgment of the intermediate court may be appealed again to the higher level court.